Filed 6/22/21 P. v. Clark CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304613
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA467673)
v.
JOE WILLIE CLARK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Laura F. Priver, Judge. Affirmed.
Diane E. Berley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithy, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
A jury convicted appellant, Joe Willie Clark, of second
degree murder in violation of Penal Code section 187, subdivision
(a)1 and found true that appellant personally discharged a
firearm causing death as alleged under section 12022.53,
subdivision (d). The jury also convicted appellant of illegal
possession of a firearm by a felon in violation of section 29800,
subdivision (a)(1). The trial court sentenced appellant to a term
of 15 years to life for the second degree murder conviction and a
consecutive term of 25 years to life for the gun enhancement.
Appellant filed a timely notice of appeal.
On appeal, appellant contends: (1) the trial court
improperly restricted appellant’s expert witness’s testimony on
the effect of Post Traumatic Stress Disorder (PTSD) at the time
of the shooting in violation of his federal and state constitutional
rights to present a defense; (2) the trial court’s imposition of a
consecutive term of 25 to life for the gun enhancement under
section 12022.53, subdivision (d) violated the Double Jeopardy
Clause of the Fifth Amendment of the federal Constitution as an
improper multiple punishment; and (3) the trial court’s
imposition of the restitution fine of $300 pursuant to section
1202.4, subdivision (b) and $7,007.30 for victim restitution
pursuant to section 1202.4, subdivision (f) were the result of
invalid waivers and were unconstitutionally excessive in violation
of the Eighth and Fourteenth Amendments. We affirm the
judgment.
1
Unless otherwise indicated, all further section references
are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution’s Case
On April 28, 2018 around 7:00 p.m., Damecia M. was in her
SUV alone behind the driver’s seat waiting for the gate to open so
she could enter the parking area at an apartment building called
the Renato. The Renato is a low-income housing apartment
building located in the “skid row” area of downtown Los Angeles.
Damecia M. was visiting her mother who lived there. She
observed a “heated” argument between the victim, Toby Lacy,
and appellant near her car. Both men were moving their hands
while they argued, but neither attempted to hit the other. While
Damecia M. was looking at her phone, she heard a single
gunshot. She observed Lacy walking towards the gate at the
Renato and fall to the ground. Damecia M. observed appellant
walk past her car putting the gun away, which she described as a
small handgun, and enter the Renato out of sight. Damecia M.
called 911.
Surveillance video from the Renato captured appellant go
up to the roof of the apartment building. Later, when the police
searched for evidence, a revolver was found on the roof near
where appellant was captured on the surveillance video.
When officers from the Los Angeles Police Department
arrived at the Renato, they found Lacy on the ground
unresponsive. The coroner determined that Lacy died from a
single gunshot wound to his chest. A bullet was recovered from
Lacy’s body. The revolver found on the roof was test fired and
compared to the bullet extracted from Lacy’s body. The result
showed the revolver fired the fatal shot.
3
Appellant’s Case
Nathan Peterson who worked as a janitor at the Renato
testified that he and appellant were childhood friends whose
friendship became closer when appellant moved in at the Renato.
Peterson recognized Lacy as a person who stayed in the unit
across from appellant’s unit. A few months before the shooting,
he noticed that appellant had a gash over his eye. Appellant said
he was jumped by two guys – one of them was Lacy. After
observing the gash over the eye, Peterson noticed that appellant
acted differently by “looking out the door, and he’s doing this way
and this way and shutting his door.” He appeared shaken by the
incident.
Another childhood friend, Anthony Parker testified that
about a week before the shooting, appellant asked Parker to
accompany him to retrieve an item from his apartment at the
Renato because he was having trouble with his neighbor and that
he was afraid of him.
Appellant’s cousin, Mark M. testified that appellant was
raised by his grandmother in South Central Los Angeles in a very
violent neighborhood. He and appellant remained close and the
two would visit each other in the San Fernando Valley (Valley)
where Mark M. lived, and also in downtown Los Angeles, where
appellant lived. Mark M. noticed a difference in appellant’s
demeanor in the Valley, where he was relaxed, and, in downtown,
where he “look[ed] over his shoulder.”
Appellant testified that he grew up in South Central
Los Angeles raised by his grandmother. He was shot at five
times between 1986 to 2005. Appellant experienced flashbacks of
these shootings triggered by watching T.V., or, by things that
“happen[ed] outside.” He had been staying at the Renato for
4
about six years. Renato is in the “skid row” area of downtown
Los Angeles. Appellant felt safe in his apartment but not safe
outside.
Appellant suffered from depression for which he received
treatment at a clinic. He felt downtown Los Angeles was
dangerous and wanted to get away.
Appellant knew Lacy was a guest staying in the apartment
across the hall from his apartment. On several occasions, Lacy
wanted appellant to let him into the building but appellant
refused based on the “house” rule that a resident was required to
sign the guest into the building, and, Lacy was not appellant’s
guest. Lacy was upset at appellant for not letting him into the
building, and, over time, became more and more upset. Lacy
would call appellant names such as “fag,” “bitch,” “moron,” and
“cripple.” This began sometime in 2016 and continued until the
incident.
Lacy threatened appellant three times, and on the last one,
Lacy, and Lacy’s brother, Andre, physically assaulted him. The
assault happened several months before the incident. After the
assault, appellant was ”really afraid of this guy” because “he
made good on his threat, he let me know he could do harm to me.”
After this incident, appellant tried to avoid Lacy but still ran into
him numerous times. Lacy verbally harassed appellant each
time.
Appellant testified that out of fear for his life, in January
2018, he armed himself with a handgun for protection.
On the day of the incident, appellant had gone to a corner
store to buy junk food and was standing near the front of the
Renato. Lacy approached appellant approximately two to three
feet away, angry. Appellant told Lacy to leave him alone, but
5
Lacy continued to harass him. Lacy appeared to become angrier.
Appellant pulled the handgun and told Lacy to leave him alone.
Lacy continued to advance. Appellant shot Lacy when he was
inches away. Appellant hid the gun on the roof of the Renato.
Dr. Kevin Booker, a certified trauma specialist testified
about appellant’s diagnosis for PTSD. He holds a doctorate
degree from the University of California, Santa Barbara. Booker
interviewed appellant on three occasions. Booker testified that
individuals suffering from PTSD experience several symptoms -
they re-experience the trauma such as flashbacks, they attempt
to avoid memories and reminders of the traumatic event – and
they become hyperaware of their surroundings. Booker
diagnosed appellant as suffering from moderate to severe PTSD.
Booker explained that a person who is a victim of gunshot
manifests symptoms of PTSD to include hyperarousal. A person
exhibits hyperarousal when the heightened awareness of
something happening causes an overreaction. Booker testified
that appellant suffered from PTSD at the time he was involved in
the incident.
DISCUSSION
I. Testimony of the Defense Expert
Appellant contends the trial court improperly restricted the
defense expert’s testimony about the effect of PTSD on
appellant’s state of mind at the time of the shooting in violation
of his federal constitutional right under the Fourteenth
Amendment and his state constitutional right under article I,
section 15. We disagree.
A. Legal Principles
Under the California Penal Code, the restrictions on the
scope of expert witness’s testimony on the accused’s mental state
6
are governed by sections 28 and 29. Section 28, subdivision (a)
states in relevant part, “Evidence of mental disease, mental
defect, or mental disorder shall not be admitted to show or negate
the capacity to form any mental state, including, but not limited
to, purpose, intent, knowledge, premeditation, deliberation, or
malice aforethought, with which the accused committed the act.”
(Italics added.) Section 29 provides in part, “In the guilt phase of
a criminal action, any expert testifying about a defendant’s
mental illness, mental disorder, or mental defect shall not testify
as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose,
intent, knowledge, or malice aforethought, for the crimes
charged.” (Italics added.)2 Together, sections 28 and 29 stand for
the combined rule that in a criminal trial, an expert witness who
testifies about the accused’s mental condition may not: (1) testify
that the accused did not have the capacity to form a particular
mental state, and (2) testify that at the time of the alleged
incident, the accused harbored or did not harbor the required
mental state. “The question as to whether the defendant had or
did not have the required mental states shall be decided by the
trier of fact.” (§ 29.)
2 The third rule, not relevant in this appeal, is section 25
which abolished the defense of diminished capacity. (§ 25, subd.
(a) [“The defense of diminished capacity is hereby abolished. In a
criminal action, as well as any juvenile court proceeding,
evidence concerning an accused person’s intoxication, trauma,
mental illness, disease, or defect shall not be admissible to show
or negate capacity to form the particular purpose, intent, motive,
malice aforethought, knowledge, or other mental state required
for the commission of the crime charged.”].)
7
The limits of sections 28 and 29 in relation to permissible
defense expert testimony on the accused’s mental condition were
explained in People v Coddington (2000) 23 Cal.4th 529
(Coddington), overruled on another ground by Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069, footnote 13. Coddington
noted, “Sections 28 and 29 permit introduction of evidence of
mental illness when relevant to whether a defendant actually
formed a mental state that is an element of a charged offense, but
do not permit an expert to offer an opinion on whether a
defendant had the mental capacity to form a specific mental state
or whether the defendant actually harbored such a mental state.
An expert’s opinion that a form of mental illness can lead to
impulsive behavior is relevant to the existence vel non of the
mental states of premeditation and deliberation regardless of
whether the expert believed appellant actually harbored those
mental states at the time of the killing.” (Id. at p. 582, fns.
omitted.) Coddington further explained that, “Sections 28 and 29
do not preclude offering as a defense the absence of a mental
state that is an element of a charged offense or presenting
evidence in support of that defense. They preclude only expert
opinion that the element was not present.” (Id. at p. 583.)
In People v. Herrera (2016) 247 Cal.App.4th 467 (Herrera),
the Court of Appeal reversed a judgment based on a trial court’s
order limiting the defense expert witness from testifying about
the defendant’s mental condition at the time of the offense. The
Herrera court relied on Coddington and on another Court of
Appeal opinion – People v. Cortes (2011) 192 Cal.App.4th 873 –
in reaching its conclusion.
In Herrera, “[d]efense counsel asked [the defendant’s expert
witness] if she had an opinion ‘as to whether [the defendant] was
8
suffering from [peritraumatic dissociative state],’ ‘whether he was
psychiatrically impaired,’ and ‘whether he suffered from [PTSD]’
on the date of the murder. The prosecutor objected to all three
questions. The trial court sustained the objections ‘based on
what we talked about earlier.’ ” (Herrera, supra, 247 Cal.App.4th
at p. 475.)
The Herrera court held that this limitation placed by the
trial court was more restrictive than what sections 28 and 29
prohibit. (Herrera, supra, 247 Cal.App.4th at p. 478.) The court
explained, “[t]aken together, these sections ‘do not preclude
offering as a defense the absence of a mental state that is an
element of a charged offense or presenting evidence in support of
that defense. They preclude only expert opinion that the element
was not present.’ [Citation.] ‘Put differently, sections 28 and 29
do not prevent the defendant from presenting expert testimony
about any psychiatric or psychological diagnosis or mental
condition he may have, or how that diagnosis or condition
affected him at the time of the offense, as long as the expert does
not cross the line and state an opinion that the defendant did or
did not have the intent, or malice aforethought, or any other legal
mental state required for conviction of the specific intent crime
with which he is charged.’ [Citation.]” (Id. at p. 476.)
On the question of the proper standard of review, appellant
cites Herrera and contends we must independently review the
trial court’s decision because of his constitutional right to present
a defense. In People v. Fudge (1994) 7 Cal.4th 1075, the
California Supreme Court noted, “[a]s a general matter, the
‘[a]pplication of the ordinary rules of evidence . . . does not
impermissibly infringe on a defendant’s right to present a
defense.’ [Citations.] Although completely excluding evidence of
9
an accused’s defense theoretically could rise to this level,
excluding defense evidence on a minor or subsidiary point does
not impair an accused’s due process right to present a defense.
[Citation.]” (Id. at pp. 1102-1103.) Here, if error occurred,
restricting the evidence that potentially reduces or negates the
mental state required to prove the crime of murder was not a
“minor” or a “subsidiary point.” Therefore, as in Herrera, we
shall apply independent review to this “ ‘mixed question
determinations affecting constitutional rights.’ ” (People v. Seijas
(2005) 36 Cal.4th 291, 304.)
When applying independent review, we assess prejudice
using the Chapman standard. (Chapman v. California (1967)
386 U.S. 18 (Chapman).) “Under Chapman, a federal
constitutional error is harmless when the reviewing court
determines ‘beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.’ [Citation.] When
there is ‘ “a reasonable possibility” ’ that the error might have
contributed to the verdict, reversal is required. [Citation.]”
(People v. Aranda (2012) 55 Cal.4th 342, 367.)
B. Analysis
At the motion in limine to determine the scope of
permissible testimony for Dr. Booker, the trial court ruled,
defense expert cannot testify to anything that would be the
ultimate issue at trial, such as whether or not the defendant
could have the – form the particular intent. That includes
through any hypothetical. Hypotheticals can’t be formulated
which would have the expert opine that a defendant either
actually formed or could not form the specific intent or a
particular intent.”
10
Appellant claims this ruling by the trial court precluded
Dr. Booker from testifying that he was suffering from PTSD at
the time he shot Lacy. Appellant relies heavily on Herrera to
draw a similar comparison. The rulings between the two cases,
however, are not similar.
In Herrera, the trial court ruled that the defense expert
would be allowed to “ ‘testify as to various aspects of [PTSD], as
to testing and things of that nature, but not anything related to
mental state at the time of the commission of the offense.’ ”
(Herrera, supra, 247 Cal.App.4th at p. 474-475.) On the contrary,
the trial court here did not restrict appellant’s trial counsel from
asking questions about appellant’s mental state at the time of the
shooting. Rather, the trial court’s ruling is consistent with the
limits based on section 28 - whether appellant could form the
particular intent - and section 29 – whether appellant actually
formed the specific intent or mental state.3 While the words used
by the trial court differed from the statutory language, they
conveyed the same limits within sections 28 and 29 and nothing
more. The trial court’s ruling was consistent with sections 28
and 29. There was no error.
In any event, Dr. Booker ultimately testified about
appellant’s state of mind at the time of the incident through
3 Indeed, the bigger issue appeared to be the hearsay
problem of having Dr. Booker testify to case-specific facts (how
the appellant was shot at five times to establish traumatic events
as foundation for PTSD) as discussed in People v. Sanchez (2016)
63 Cal.4th 665. While we have no way of knowing why the
appellant decided to testify, laying the case-specific foundation to
establish the underlying traumatic event is certainly a plausible
reason.
11
cross-examination by the prosecutor. To show the jury Dr.
Booker could not know whether appellant acted under the stress
of PTSD at the time of the shooting, the prosecutor asked:
“[The Prosecutor:] You weren’t there when the [appellant]
actually shot the victim in the case, obviously; right?
“[Dr. Booker:] Of course not, no.
“[The Prosecutor:] So you didn’t have the – – you weren’t able to
observe his demeanor or his expression during the actual
shooting; correct?
“[Dr. Booker:] That’s correct.
“[The Prosecutor:] You couldn’t hear the tone of his voice when
he pointed the gun at somebody for, you know, ten seconds;
correct?
“[Dr. Booker:] No sir.
“[The Prosecutor:] So you cannot tell this jury with any certainty
that the [appellant] had a PTSD episode at that moment. All you
can tell them is that it’s possible that he could have based on
your evaluation a year later.
Dr. Booker took issues with the concept of an “episode.” He
told the jury that PTSD is not characterized as being experienced
in episodes but rather, that a person who suffers from PTSD
“have it, and it doesn’t go away. So it doesn’t selectively or
intermittently present itself. Once it’s there, it’s there. [¶] So
again, my statement is that I can tell the jury that, yes,
[appellant] did have PTSD at the time he was involved in this
case.” Unlike Herrera where the defendant’s expert never
testified about whether the defendant was suffering from PTSD
at the time of the killing, here, the direct opposite occurred. Dr.
12
Booker informed the jury that at the time of the shooting,
appellant suffered from PTSD.
The record shows that the jury was informed that: (1)
appellant grew up in a high crime area; (2) appellant was shot at
five times from 1986 to 2005; (3) appellant suffered from
flashbacks about these shootings; (4) appellant’s numerous
encounters with Lacy caused him nervousness and fear; (5) the
beating by Lacy and Andre several months before the shooting
caused appellant to fear for his physical safety; (6) after three
interviews and testing, Dr. Booker diagnosed appellant as
suffering from moderate to severe PTSD, (7) Dr. Booker did not
believe that appellant was malingering, (8) Dr. Booker reviewed
medical reports from when appellant was shot; (9) psychological
trauma is a response human beings exhibit after experiencing a
life-threatening situation; (10) psychological trauma can lead to a
host of symptoms that includes a significant preoccupation with
safety that activates the fear circuitry; (11) when the fear
circuitry is activated, one of the symptoms is the involuntary
“fight or flight” reaction which triggers four potential outcomes
(flight/fight/freeze/faint); (12) re-encountering the assailant who
previously caused a traumatic event increases the activation of
the fear circuitry; (13) a person who undergoes a qualifying
traumatic event can develop PTSD; (14) symptoms of PTSD
include flashbacks, avoidance, and hyperarousal; (15) length of
time from when a person suffers a qualifying traumatic event
does not determine whether someone continues to suffer from
PTSD; and (16) hyperarousal, or hypervigilance, can lead to
overreaction to the stress causing event.
We note again that the trial court’s ruling limiting Dr.
Booker’s testimony was consistent with sections 28 and 29. As
13
the Attorney General posits, however, even if there was error,
such error – even under the Chapman standard – was not
prejudicial.
The evidence that appellant suffered from PTSD at the
time of the shooting was ultimately received by the jury through
cross-examination by the prosecutor. When that piece of evidence
is combined with all other evidence presented to the jury as
categorized above, the jury received what appears to be the
totality of relevant admissible evidence to negate or reduce the
mens rea for murder liability. Moreover, the jury received
evidence that appellant was angry at Lacy, and, hated him.
Appellant testified he knew Lacy had no weapons in his hands at
the time of the shooting. Instead of calling 911 to explain what
happened, appellant sought to get rid of the gun and
unsuccessfully attempted to hide it on the roof of the Renato.
Once at the rooftop, appellant hid in the doorway for a few
minutes to make sure no one was on the roof before going out.
Given this set of evidence, there was no reasonable possibility
that the alleged error contributed to the verdict. If any error
occurred, such error was harmless beyond a reasonable doubt.
II. Double Jeopardy Claim
Appellant next contends the trial court’s imposition of a
consecutive term of 25 to life for the gun enhancement under
section 12022.53, subdivision (d) violated the Double Jeopardy
Clause of the Fifth Amendment as an improper multiple
punishment. We disagree.
A. Legal Principles
The United States Supreme Court has explained that the
Double Jeopardy Clause of the Fifth Amendment “protects
against a second prosecution for the same offense after acquittal.
14
It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the
same offense.” (North Carolina v. Pearce (1969) 395 U.S. 711,
717, fns. omitted.)
On “multiple punishment for the same offense,” Jones v.
Thomas (1989) 491 U.S. 376 is instructive. The high court
explained, “Our cases establish that in the multiple punishments
context, that interest is ‘limited to ensuring that the total
punishment did not exceed that authorized by the legislature.’
[Citations.] The purpose is to ensure that sentencing courts do
not exceed, by the device of multiple punishments, the limits
prescribed by the legislative branch of government, in which lies
the substantive power to define crimes and prescribe
punishments. [Citation.] In this case, respondent’s conviction of
both felony murder and attempted robbery gave rise to a double
jeopardy claim only because the Missouri Legislature did not
intend to allow conviction and punishment for both felony murder
and the underlying felony. [Citations.]” (Id. at p. 381.) Stated
differently, “[w]ith respect to cumulative sentences imposed in a
single trial, the Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater
punishment than the legislature intended.” (Missouri v. Hunter
(1983) 459 U.S. 359, 366.)
B. Analysis
As the high court’s decisions make clear, when assessing a
double jeopardy claim under the category of “multiple
punishments,” we look to legislative intent. Appellant accurately
posits the pertinent question – “[t]he issue is whether, when the
crime is murder, the Legislature intended to further increase the
penalty because the defendant’s act resulted in death.”
15
Before we delve into the double jeopardy analysis, a short
discussion of related rules is appropriate, namely the rule
prohibiting multiple convictions based on necessarily included
offenses, and, the rule against multiple punishment under
section 654.
In California, the rule against multiple convictions, if the
accused is convicted of both a greater offense and a necessarily
included lesser offense, is longstanding. When this occurs, the
conviction of the lesser offense is unlawful and must be reversed.
(People v. Pearson (1986) 42 Cal.3d 351, 355, overruled on other
grounds by People v. Vidana (2016) 1 Cal.5th 632, 650; People v.
Cole (1982) 31 Cal.3d 568, 582; People v. Moran (1970) 1 Cal.3d
755, 763; People v. Bauer (1969) 1 Cal.3d 368, 375; People v. Greer
(1947) 30 Cal.2d 589, 604, overruled on another ground by People
v. Fields (1996) 13 Cal.4th 289, 308, fn. 6.) In People v. Izaguirre
(2007) 42 Cal.4th 126 (Izaguirre), the California Supreme Court
held that sections 12022.5 and 12022.53 were not elements of a
crime for purposes of the multiple conviction rule. Izaguirre did
not squarely address the double jeopardy issue on multiple
punishments.
Section 654, subdivision (a) states, “An act or omission that
is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision. An
acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.”
In People v. Palacios (2007) 41 Cal.4th 720 (Palacios), the
appellant was “convicted of attempted premeditated murder (§§
187, subd. (a), 664, subd. (a)); kidnapping for robbery (§ 209,
16
subd. (b)(1)); kidnapping for carjacking (§ 209.5, subd. (a));
carjacking (§ 215, subd. (a)); and robbery (§ 211). The jury found
that defendant discharged a firearm and personally inflicted
great bodily injury when committing these offenses. (§§
12022.53, subd. (d), 12022.7, subd. (a).) Defendant was also
convicted of assault involving personal use of a firearm. (§§ 245,
subd. (a)(2), 12022.5, subd. (a).)” (Id. at p. 724.) The trial court
imposed three 25-to-life terms based on the section 12022.53,
subdivision (d) findings on the attempted murder and the two
kidnapping convictions. The appellant claimed section 654
prohibited the trial court’s multiple impositions of the gun
enhancement because “he fired one shot at a single victim.”
(Palacios, at p. 725.)
The Palacios court rejected this argument. The court
explained that the legislative intent behind section 12022.53 was
clear: “ ‘ “The Legislature finds and declares that substantially
longer prison sentences must be imposed on felons whose use
firearms in the commission of their crimes, in order to protect our
citizens and to deter violent crimes.” ’ ” (Palacios, supra, 41
Cal.4th at p. 725.) In resolving the contention, the Palacios court
held, “We are persuaded that, in enacting section 12022.53, the
Legislature made clear that it intended to create a sentencing
scheme unfettered by section 654.” (Id. at pp. 727-728.) While
Izaguirre and Palacios are helpful in analyzing appellant’s
contention, neither case is directly on point.
Appellant’s argument is, however, very similar to a section
654 contention. This is so because he frames the issue applicable
only to murder convictions. Appellant asks a rhetorical question
– “If the Legislature passed a law providing for enhanced
punishment for all murder that causes a death, would that law
17
punish the same act more than once?” But the issue he raises is
a violation of the Double Jeopardy Clause of the Fifth
Amendment within the category of multiple punishments. Here,
we look to determine whether the Legislature prohibits the
multiple punishment in question.
“The fundamental task of statutory construction is to
‘ascertain the intent of the lawmakers so as to effectuate the
purpose of the law. [Citations.] In order to determine this intent,
we begin by examining the language of the statute.’ [Citation.]
The words of a statute are to be interpreted in the sense in which
they would have been understood at the time of the enactment.
[Citations.]” (People v. Cruz (1996) 13 Cal.4th 764, 774-775.) We
consider the language used in a statute as “ ‘generally is the most
reliable indicator of legislative intent.’ ” (People v. Cornett (2012)
53 Cal.4th 1261, 1265.) The plain meaning controls absent
ambiguity in the statutory language. (Ibid.)
Section 12022.53, subdivision (d) provides,
“Notwithstanding any other provision of law, any person who, in
the commission of a felony specified in subdivision (a), Section
246, or subdivision (c) or (d) of Section 26100, personally and
intentionally discharges a firearm and proximately causes great
bodily injury, as defined in Section 12022.7, or death, to any
person other than an accomplice, shall be punished by an
additional and consecutive term of imprisonment in the state
prison for 25 years to life.”
“ ‘By definition, a sentence enhancement is “an additional
term of imprisonment added to the base term.” ’ [Citations.]”
(People v. Gonzalez (2008) 43 Cal.4th 1118, 1124.) As such, the
plain reading of the statute shows, any person who is convicted of
an offense specified in section 12022.53, subdivision (a) is to be
18
punished with a consecutive term of 25 to life. Subdivision (a)
enumerates the offenses to which this enhancement applies. On
this list of qualifying crimes, the crime of murder as defined
under section 187 is at the very top. (§ 12022.53, subd. (a)(1).)
It is true the California Legislature softened the mandatory
nature of imposing section 12022.53 enhancements under Senate
Bill No. 620 (2017-2018 Reg. Sess.) by permitting a trial court to
“strike or dismiss an enhancement otherwise required to be
imposed by this section” under section 1385. (§ 12022.53, subd.
(h).) Despite this amendment, this section still requires that
“probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, any person found to
come within the provisions of this section.” (Id., subd. (g).) From
our reading of the statute, it is clear the Legislature has not
prohibited the imposition of consecutive terms when a person is
convicted of murder and the section 12022.53, subdivision (d)
enhancement is found true. There is no double jeopardy problem
under the Fifth Amendment.
III. Restitution Fine/Victim Restitution Contention
Appellant contends the restitution fine and victim
restitution orders were the result of invalid waivers and were
unconstitutionally excessive in violation of the Eighth and the
Fourteenth Amendments of the federal Constitution. We
disagree.
A. Legal Principles
In California’s appellate landscape, there currently exist
two alternate methods for raising a claim that a trial court’s
imposition of fines and fees at sentencing is unconstitutional: (1)
a violation of the due process clause as discussed in People v.
Dueñas (2019) 30 Cal.App.5th 1157; and (2) a violation of the
19
Excessive Fines Clause as discussed in People v. Gutierrez (2019)
35 Cal.App.5th 1027, and People v. Aviles (2019) 39 Cal.App.5th
1055. Appellant raises his constitutional challenge to the
imposition of the restitution fine and the direct victim restitution
order under the Eighth Amendment’s proscription against the
imposition of excessive fines rather than under the umbrella of
due process.4
The Eighth Amendment protects against the imposition of
excessive fines. (U.S. Const. 8th Amend.) “[T]he word ‘fine’ was
understood to mean a payment to a sovereign as punishment for
some offense.” (Browning–Ferris Industries v. Kelco Disposal,
Inc. (1989) 492 U.S. 257, 265 (Browning-Ferris).) The Browning-
Ferris court reviewed the relevant history of English law and
concluded that the Framers of the Bill of Rights intended the
Excessive Fines Clause as “limiting the ability of the sovereign to
use its prosecutorial power, including the power to collect fines,
for improper ends.” (Id. at p. 267.) “[T]he history of the Eighth
Amendment convinces us that the Excessive Fines Clause was
intended to limit only those fines directly imposed by, and
payable to, the government.” (Id. at p. 268.) “[A] punitive
forfeiture violates the Excessive Fines Clause if it is grossly
disproportional to the gravity of a defendant’s offense.” (United
States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).)
Based on Bajakajian, California courts apply a four-part
analysis when confronted with an excessive fine claim under the
Eighth Amendment: “(1) the defendant’s culpability; (2) the
4 The Eighth Amendment provides, “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” (U.S. Const., 8th Amend.)
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relationship between the harm and the penalty; (3) the penalties
imposed in similar statutes; and (4) the defendant’s ability to
pay.” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005)
37 Cal.4th 707, 728.)
B. Analysis
At the time of sentencing, the trial court imposed a
restitution fine pursuant to section 1202.4, subdivision (b) in the
amount of $300. The trial court also imposed direct victim
restitution to be paid to the Victim Compensation Board in the
amount of $7,007.30. Appellant claims both orders violated his
constitutional rights against excessive fines under the Eighth
Amendment. We review each in turn.
1. Section 1202.4, subdivision (b) Order
As noted ante, the trial court imposed the mandatory
minimum fine of $300 under section 1202.4, subdivision (b) for a
felony conviction. (§ 1202.4, subd. (b)(1).) Under section 1202.4,
subdivision (c), “A defendant’s inability to pay shall not be
considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
minimum fine pursuant to paragraph (1) of subdivision (b).” (Id.,
subd. (c).) Based on the mandatory nature of imposing the
minimum amount of restitution fine under this subdivision,
“[c]ourts have generally declined to apply the forfeiture doctrine
where the minimum restitution fine was imposed because the
statute expressly precludes objection in that circumstance.
[Citations.]” (People v. Montes (2021) 59 Cal.App.5th 1107, 1115-
1116.) We shall do the same.
We find that the trial court’s imposition of the $300
restitution fine was not grossly disproportionate to appellant’s
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conviction for Lacy’s murder. Although appellant stood convicted
of murder, one of the most serious of crimes under the
California’s penal code, the trial court only imposed the
mandatory minimum amount. Although appellant contested the
mental state required as an element of the crime of murder, there
was no question appellant shot and killed Lacy. As the Attorney
General notes, nothing in the record suggests appellant would
not be able to pay the minimum amount as ordered by the trial
court. The probation officer’s report showed that he had lived at
the Renato for five years and was employed at the time he shot
Lacy. Nothing suggests he will not be able to perform some labor
while in the prison system. The imposition of the restitution fine
pursuant to section 1202.4, subdivision (b) was not excessive in
violation of the Eighth Amendment.
2. Section 1202.4, subdivision (f) Order
To apply the Excessive Fines Clause to direct victim
restitution under section 1202.4, subdivision (f), appellant must
show that the restitution payment is a “fine” that is paid to a
“sovereign.” (Browning–Ferris, supra, 492 U.S. at p. 268.)
In California, direct victim restitution is a state
constitutional right. Article I, section 28, subdivision (b)(13) of
the California Constitution states, “In order to preserve and
protect a victim’s rights to justice and due process, a victim shall
be entitled to the following rights: To restitution.” This
constitutional right is codified in section 1202.4, subdivision (f)
which states in relevant part, “in every case in which a victim has
suffered economic loss as a result of the defendant’s conduct, the
court shall require that the defendant make restitution to the
victim or victims in an amount established by court order, based
on the amount of loss claimed by the victim or victims or any
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other showing to the court.” (§ 1202.4, subd. (f).) Section 1202.4,
subdivision (f)(3) provides a laundry list of qualifying losses such
as: (1) items stolen or damaged, (2) medical expenses, (3) mental
health counseling, (4) lost wages etc. (Id., subd. (f)(3)(A)-(D).) “A
defendant's inability to pay shall not be a consideration in
determining the amount of a restitution order.” (Id., subd. (g).)
“A restitution order imposed pursuant to subdivision (f) shall be
enforceable as if the order were a civil judgment.” (Id., subd. (i).)
As can be observed, a victim’s constitutional right to
restitution under the California Constitution as implemented
through section 1202.4, subdivision (f) is neither a “fine” nor a
payment to a “sovereign.” Unlike a fine which is normally
determined by the legislative branch as punishment, the amount
of direct victim restitution is set based on the amount claimed by
the victim. (§ 1202.4, subd. (f).) The payment is not made to the
state of California or to any governmental entity but is instead
paid to the victim, with one exception. (Ibid.) When a victim has
received payment for restitution from the California Victim
Compensation Board, as in this case, the amount of loss is paid to
the Restitution Fund. (Id., subd. (f)(2).) We do not see this
exception as changing the legal nature of direct victim restitution
as a victim’s constitutional right to be made financially whole for
losses stemming from criminal activity.
Among other cases, appellant relies on Timbs v. Indiana
(2019) __ U.S. __ [139 S.Ct. 682], and Austin v. United States
(1993) 509 U.S. 602 (Austin) and contends the payment of direct
victim restitution is a “fine” as contemplated by the Excessive
Fines Clause. Both Timbs and Austin were civil asset forfeiture
cases instituted after a criminal conviction. Timbs was published
to incorporate the Excessive Fine Clause as applicable against
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the states through the Fourteenth Amendment. (Timbs, at pp.
689-690.)
In Austin, the United States government argued that the
Excessive Fines Clause did not apply to “a civil proceeding unless
that proceeding is so punitive that it must be considered
criminal” under the decisional laws of the United States Supreme
Court. (Austin, supra, 509 U.S. at p. 607.) The Austin court
explained, “the question is not, as the United States would have
it, whether forfeiture under [the applicable statute] is civil or
criminal, but rather whether it is punishment.” (Id. at p. 610.)
The Austin court noted that sanctions sometimes serve more than
one purpose, and that “ ‘a civil sanction that cannot fairly be said
solely to serve a remedial purpose, but rather can only be
explained as also serving either retributive or deterrent purposes,
is punishment, as we have come to understand the term.’ ”
(Ibid.)
To establish that payments of restitution to the victim is
“punishment,” appellant cites People v. Allen (2019) 41
Cal.App.5th 312 (Allen) which, on the relevant point, cited People
v. Guillen (2013) 218 Cal.App.4th 975 (Guillen). Guillen dealt
with the question whether trial courts have the authority to
suspend restitution fines ordered under section 1202.4,
subdivision (b) and answered in the affirmative. (Guillen, at p.
998.) Before arriving at its holding, Guillen discussed the
difference between the restitution fine and direct victim
restitution by explaining that “[t]he purposes of the two kinds of
restitution are different. The imposition of a restitution fine is
punishment. [Citation.] The purpose of direct victim restitution,
however, is to reimburse the victim for economic losses caused by
the defendant’s criminal conduct, i.e., to make the victim
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reasonably whole. [Citations.] Secondary goals of direct
restitution include rehabilitation of the defendant and deterrence
of future criminality. [Citation.]” (Id. at p. 984.) Seizing on the
discussion of the secondary goals as recognized in California’s
appellate decisions, appellant argues that direct victim
restitution, based on the Austin standard, is subject to the Eighth
Amendment’s proscription against the imposition of excessive
fines.5
We are not convinced for several reasons. First, Allen and
Guillen did not address whether direct victim restitution
constitutes “punishment” for purpose of the Excessive Fines
Clause. Second, while one of the four-part analysis under the
Excessive Fines Clause asks whether the defendant has the
ability to pay the sanction, direct victim restitution is to be
ordered regardless of the defendant’s ability to pay. (See
§ 1202.4, subd. (g).) Third, the amount of direct victim restitution
5 In discussing the goals of direct victim restitution, Guillen
cited People v. Jennings (2005) 128 Cal.App.4th 42, which
addressed whether a trial court is vested with authority to offset
its direct victim restitution order by the amount of an insurance
settlement payment made to the victim by a defendant who was
an insured, but did not obtain the insurance himself. In a
two-one decision, the majority held that the defendant was
entitled to an offset for amounts paid by his insurance company
for the victim’s medical expenses. (Id. at pp. 55-57.) While
recognizing that California’s decisional law has acknowledged
that rehabilitation and deterrence serve as additional goals in
ordering a defendant to pay victim restitution, the majority noted
that “the primary purpose of victim restitution is to fully
reimburse the victim for his or her economic losses.” (Id. at p.
57.)
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is not determined through independent governmental action, but
instead by the amount claimed by the victim. (Id., subd. (f).)
Furthermore, the payment of direct victim restitution is not made
to the “sovereign,” but instead, to the victim as compensation for
economic loss suffered from criminal activity.
Browning-Ferris concerned whether the Excessive Fines
Clause applied to punitive damage awards in a suit between
private individuals. There, the court noted, “even if we were
prepared to extend the scope of the Excessive Fines Clause
beyond the context where the Framers clearly intended it to
apply, we would not be persuaded to do so with respect to cases of
punitive damages awards in private civil cases, because they are
too far afield from the concerns that animate the Eighth
Amendment. We think it clear, from both the language of the
Excessive Fines Clause and the nature of our constitutional
framework, that the Eighth Amendment places limits on the
steps a government may take against an individual, whether it be
keeping him in prison, imposing excessive monetary sanctions, or
using cruel and unusual punishments.” (Browning–Ferris, supra,
492 U.S. at p. 275.) Like punitive damage awards, direct victim
restitution is too far afield from the concerns that animate the
Eighth Amendment. As such, we decline to hold direct victim
restitution under section 1202.4, subdivision (f) is subject to the
Excessive Fines Clause of the Eighth Amendment.
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DISPOSITION
The judgment is affirmed.
OHTA, J.*
We concur:
BIGELOW, P. J.
STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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